Friday, June 14, 2024

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Posted by Howard Wasserman on June 14, 2024 at 01:03 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 31, 2024

The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.

Posted by Howard Wasserman on May 31, 2024 at 02:34 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 28, 2024

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

First, when courts make the "federal courts apply federal procedural law" move, they mean federal courts apply the FRCP or other statutorily created procedural law. That is the lesson of Hanna--the Erie doctrine does not act as a "check" on the FRCP. But Hanna requires a different approach (and perhaps conclusion, although not in Hanna itself) when the federal rules--including procedural laws--derives from a source other than the FRCP. Courts have unfortunately (and inaccurately) short-handed the analysis. But I think that is the idea they are getting at.

Second, courts have not identified clear rules for determining when an atextual judicial gloss derives from sparse statutory text (and thus becomes part of the text) and when it reflects judge-made common law. That distinction determines whether the federal standard certainly applies under the REA (because no federal rule is invalid) or whether the court performs a far less certain "relatively unguided Erie" analysis that is more likely to require it to apply state law. This was the point of departure between Ginsburg's majority and Scalia's partial dissent in Gasperini--whether the judicially created "seriously erroneous result"/"miscarriage of justice" standard for new trials derived from an interpretation of FRCP 59(a) (Scalia) or whether the courts created it to fill statutory gaps (Ginsburg). But neither explained why their preferred understanding was correct. But it is not always obvious. Why is Twiqbal plausibility an interpretation of FRCP 8(a)(2) while the four-part Winter test for a preliminary injunction is a stand-alone test independent of FRCP 65? (the latter one is historical and predates the FRCP, but the point stands).

Although not explicit and not framed in these terms, courts seem to understand the multi-factor balance for pseudonymity as an interpretation and thus part of FRCP 10(a), which requires that the case caption include the party names. The Third Circuit explained: 1) "Rule 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings" and 2) "[w]hile not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." It follows (although the court did not say this much) that the balancing of nonexhsaustive competing interests for and against anonymity implements FRCP 10. Again, however, it is not obvious why this is the case.

So how should the District of New Mexico have resolved the plaintiff's argument for applying the more plaintiff-friendly pseudonymity rule, beyond "we must apply federal procedure." It should have said that under the Rules of Decision Act, FRCP 10(a), as interpreted through the multi-factor balancing, constitutes an Act of Congress that "otherwise requires or provides" and serves as the rule of decision; as interpreted, it is sufficiently broad to answer the question of when a plaintiff can proceed pseudonymously. The court then should have analyzed whether the rule was valid under § 2072--whether it really regulates procedure and whether it does not abridge, enlarge, or modify a substantive right. The answer would be "yes, it is valid," because every FRCP is valid. But the substantive policies underlying state law (protecting the privacy of sexual-assault victims and encouraging them to come forward) would have forced the court to either rely on "incidental effects" on substantive rights being permissible or adopt the Scalia view that a procedural rule never, in any meaningful sense, can AEM. Either way, that analysis is a lot more complicated than the footnote allows.

And what if the multi-factor test were not part of FRCP 10? The unguided Erie analysis must consider whether ignoring state law would cause the "character or result" to differ, whether a party might go to federal court to avoid less favorable state law, and whether the state law is "bound up" with substantive policy. That analysis usually points towards state law and probably would here--a defendant might remove to avoid automatic pseudonymity and the state law has underlying substantive concerns.

But this example shows why "apply federal procedure," without more, cannot be the extent of the analysis. A litigant-name rule is unquestionably "procedural"--it relates to the manner and means through which rights are enforced in court. But if the conflict with state law comes from a federal legal rule unmoored from the FRCP, the federal court may be required to apply that state law.

Posted by Howard Wasserman on May 28, 2024 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 22, 2024

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, May 17, 2024

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

Posted by Howard Wasserman on May 17, 2024 at 12:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 15, 2024

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Posted by Howard Wasserman on May 15, 2024 at 11:44 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, April 25, 2024

JOTWELL: Craig on Shatzman on clerkship whisper network

The new (guest) Courts Law essay comes from Jade Craig (Nova-Southeastern) reviewing Aliza Shatzman, The Clerkship Whisper Network: What It Is, Why It's Broken, and How to Fix It, 123 Colum. L. Rev. F. 110 (2023).

Posted by Howard Wasserman on April 25, 2024 at 10:55 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, April 16, 2024

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:


Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 04, 2024

JOTWELL: Effron on Bookman on default judgments

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming 2025), on the rules for default judgments and how they harm defendants.

Posted by Howard Wasserman on April 4, 2024 at 04:12 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, April 01, 2024

Briefplaints, press releases, and long-shot lawsuits

A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.

There is a lot here related to what I teach.

Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.

Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.

Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.

    This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.

Posted by Howard Wasserman on April 1, 2024 at 05:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 19, 2024

JOTWELL: Carroll on Gluck, Burch, and Zimmerman on bankruptcy and mass tort

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Abbe R. Gluck, Elizabeth Chamblee Burch, & Adam S. Zimmerman, Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation, 133 Yale L.J.F. 525 (2024), questioning the "turn to bankruptcy" to resolve mass tort cases.

Posted by Howard Wasserman on March 19, 2024 at 05:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 18, 2024

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Posted by Howard Wasserman on March 18, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, March 13, 2024

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

Posted by Howard Wasserman on March 13, 2024 at 01:29 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 04, 2024

JOTWELL: Bartholomew on Rapallo on attorney-client privilege in Congress

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 1oo Wash U. L. Rev. 455 (2022).

Posted by Howard Wasserman on March 4, 2024 at 05:04 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 28, 2024

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, February 20, 2024

JOTWELL: Thomas on Frampton on jury integration

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, ___ N.Y.U. L. Rev. ___ (forthcoming 2024).

Posted by Howard Wasserman on February 20, 2024 at 02:42 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Thursday, February 15, 2024

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, February 08, 2024

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 05, 2024

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

Posted by Howard Wasserman on February 5, 2024 at 11:38 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 20, 2024

Every animal who, under color . . .

Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But the court ignored two other paths to the same result.

One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.

Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.

Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Posted by Howard Wasserman on January 19, 2024 at 10:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 17, 2024

JOTWELL: Mullenix on Lammon on finality

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. (forthcoming 2024) on parties manufacturing finality through voluntary dismissals and other moves.

Posted by Howard Wasserman on January 17, 2024 at 09:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 03, 2024

A new Bivens Catch-22

After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.

But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.

Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 21, 2023

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

Posted by Howard Wasserman on December 21, 2023 at 03:35 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 18, 2023

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 15, 2023

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 14, 2023

JOTWELL: Smith on Ahdout on the Court's role in separation of powers

The new Courts law essay comes from Fred O. Smith, Jr. (Emory), reviewing Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023), considering how the Court's role as a participant in separation-of-powers disputes affects the doctrine.

Posted by Howard Wasserman on December 14, 2023 at 01:09 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, December 11, 2023

Rules Enforcement v. Rules Advisement

Here is a good one for the next edition of Berman and Friedman's The Jurisprudence of Sport:

The Kansas City Chiefs had nullified what might have been a game-winning touchdown on pretty great catch-run-and-lateral because a Chief receiver (the guy who scored the TD) lined-up offsides. (Photo and video in the linked story). Chiefs Coach Andy Reid and quarterback Patrick Mahomes were irate about the call after the game (this followed a loss last week in which a non-call on pass interference cost the Chiefs a meaningful chance to tie the game in the closing seconds). The outrage surprised me because (check the photo) the illegal formation is so blatant and obvious. And the official threw the flag as the play began, so he could not have known what would follow or what he was taking away. It could be a let-'em-play situation--under 2:00 in a 3-point game between potential Super Bowl contenders. But I never thought of offsides as a ticky-tack call akin to a foot fault or three-second violation on which refs swallow their whistles. (Compare that with, going back to the Chiefs, refs not calling PI on a hail Mary at the end of last week's game). Maybe offensive offsides (where the players gains a few inches down the field) is different from a defensive player jumping the snap.

It turns out Reid and Mahomes had a different complaint: The officials failed to follow their ordinary practice of advising offensive players, especially receivers, when they line-up offsides and giving an opportunity to correct. The ref explained that the receiver never looked to the official on the sideline for advice and that he was so far over the line that he blocked the view of the ball. The official was helpless--a blatant infraction and no opportunity to follow the soft practice and correct it; the practice does not include the official identifying the problem for the player.

These sorts of "warning" systems offer an interesting insight into how sports rules operate, especially with how officials avoid what are proceed as ticky-tack violations and ensure the players "decide the game." We can distinguish two types of "warning" systems. This one works on request--the player looks to the official for a preliminary ruling to ensure compliance before the official can make a formal call, but the official is not expected to warn the player sua sponte. For others, the ref is in constant communication with the player, without awaiting that request. For example, NBA refs constantly talk to players jockeying in the post about the 3-second violation, warning them to step out of the line when it gets close (which is really at 5 seconds rather than 3). Batters and umpires did a similar dance for years over delays in getting into the box, with the umpire reminding the player about speeding it up when necessary; MLB switched to a formal clock in 2023 when that informal warning system proved ineffective at furthering the policy of moving the game along. It might be interesting to explore which practices develop for which rules and why. The latter cannot work with the offsides call at issue in the Chiefs game--a football field is too large and too loud.

I am trying to think of legal-system analogues to this sort of pre-ruling advice. One is how judges (sometimes) treat pro se civil litigants, advising them on how to proceed and how to correct pleading defects. Another is the informality of discovery, where some judges encourage informal communications between chambers and lawyers and how discovery should proceed, especially when disputes or deadlines arise. And we see that distinction at work--the judge reaches out to help pro se litigants, while the judge still waits for parties to reach out on discovery issues, even if the judge will resolve them without a formal ruling.

Posted by Howard Wasserman on December 11, 2023 at 03:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, December 05, 2023

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Posted by Howard Wasserman on December 5, 2023 at 09:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 01, 2023

JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including Aditya Bamzai,Saikrishna Bangalore Prakash, to whom their essay responds) suggest.

Posted by Howard Wasserman on December 1, 2023 at 10:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 20, 2023

JOTWELL: Campos on Marcus on non-US discovery

The new Courts Law essay comes from Sergio Campos (BC), reviewing Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Processo Civile E Costituzione (Augusto Chizzini et al., eds., Giuffrè Francis Lefebvre 2023), which argues that discovery outside the United States looks a lot like U.S. discovery, despite assumptions that the U.S. is unique (and crazy).

Posted by Howard Wasserman on November 20, 2023 at 03:08 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Friday, November 17, 2023

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Posted by Howard Wasserman on November 17, 2023 at 10:48 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2023

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

Posted by Howard Wasserman on November 16, 2023 at 10:37 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 04, 2023

Substantive frivolousness and jurisdictional frivolousness

The Sixth Circuit held Friday that there is personal jurisdiction in Tennessee in a defamation suit against comedian Kathy Griffin over her tweets about Samuel Johnson, who was recorded harassing a prom-bound LGTBTQ student. The court found jurisdiction on three key facts:Griffin tagged and addressed some tweets to the Board of the Tennessee-based health-care company of which Johnson was CEO, urging that he be fired and and removed from the board (the claim is for tortious interference with employment and IIED); the tweets focused on the Tennessee-based activities of a Tennessee citizen and his continued employment in Tennessee; and she relied on a video of a video of the incident produced in Tennessee. The court distinguished precedent rejecting PJ in a case arising from Griffin's Twitter activities over the Nick Sandmann incident in 2019.

The First Amendment community took an unusually strong stance on the PJ issue in this case. (Griffin spoke about the case, including jurisdiction, on an episode of the Slandertown podcast). But personal jurisdiction seemed obvious in this case. The plaintiffs, and First Amendment commentators, emphasized the Sandmann cases. But the court rightly distinguished precedent, where the relevant events occurred outside Kentucky and the statements about the case went to the world; given the absence of "Kentucky-ness" over the coverage, I doubted Kentucky courts would have jurisdiction before anyone filed suit. Here, on the other hand, the people, events, and consequences of this case were entirely in Tennessee; the only things outside Tennessee were Griffin and many (probably most) of her Twitter followers. The case possessed that "Tennessee-ness" necessary for the effects test.

I wonder if the First Amendment folks conflated substance and procedure. They view the case as frivolous, because Griffin's statements were some combination of true, opinion, and hyperbole that cannot form the basis for defamation or IIED liability or, it should follow, an employment claim. This, they argue, is another example of performative defamation litigation designed to chill Griffin's internet advocacy (Griffin is a target for trolls and others); Johnson sued to shut her up. And making her not only defend, but defend in a distant place, furthers the silencing goal. But substantive frivolousness does not necessarily translate to jurisdictional frivolousness--that the lawsuit is nonsense does not mean the location is independent nonsense. Geographic inconvenience could form a piece of the performative nonsense--see Rudy Giuliani's defamation suit against Joe Biden in New Hampshire. But not always. And not here. Imagining the case had merit (as a court must in determining jurisdiction), this lawsuit is about Tennessee.

Griffin moved in the trial court to dismissed under 12(b)(2) and 12(b)(6), but the district court did not address the latter. She asked the court of appeals to do the 12(b)(6) analysis and dismiss, but the court wanted the trial court to take the first pass at that issue.

Judge Cole concurred. He argued that jurisdiction rests on the tweets tagging or speaking to the company and discussing Johnson's employment; absent those tweets, the case looks different. He might have come out the other way if Griffin's original tweet had described Johnson but not mentioned the company by name or location. That different case would turn on Johnson's conduct and Griffin's role as an LGBTQ+ activist and whether she was passively discussing events on the internet or whether she directed electronic activity into Tennessee with the intent to engage or interact with people or businesses there. I do not know what to think of that. On one hand, courts must recognize the undivided nature of internet communications--it is impossible for one Twitter user to control who views her tweets where, such that any communication is directed everywhere, not to the forum state. On the other hand, the analysis should acknowledge when a speaker in Califonia speakers to the world about an exclusively Tennessee thing.

Cole added this at the end: "Our opinion also does not comment on the veracity of Johnson’s allegations in making our personal jurisdiction determination." True and not disputed. But interesting that he saw need to mention the point and head off any suggestion that finding jurisdiction suggests the suit has any merit. Maybe this is why the First Amendment crowd was so vested in the court finding a lack of jurisdiction.

Posted by Howard Wasserman on November 4, 2023 at 12:34 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 03, 2023

JOTWELL: Kalajdzic on Erichson & Leib on class settlements as contracts

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts, 102 N.C. L. Rev. ___ (forthcoming 2023), which argues against understanding class action settlements as contracts.

Posted by Howard Wasserman on November 3, 2023 at 11:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, October 30, 2023

Private defensive litigation and the state role

The Third Circuit declared valid a New Jersey law requiring noncustodial parents, at the request of the custodial parents, to continue paying child support past the child's nineteenth birthday where the child is a full-time college student; the law does not impose such an obligation on custodial parents. Merits aside, I do not understand how this case reached federal court; that it did again illustrates how often courts and litigants--including the government--misunderstand or ignore the boundaries between offensive and defensive (and federal and state) constitutional litigation.

Pittman is the noncustodial parent. Pittman's ex-wife requested in state court continuation of the support obligation because their daughter was a full-time college student. The state court agreed and ordered three more years of support. Pittman sought relief from that obligation.

Pittman filed a § 1983 action in federal court. According to the district court, Pittman sued the governor and attorney general; the court granted a motion to dismiss, in part, because the governor and attorney general, as executive officials, have "no power to codify, amend, or abolish the laws Plaintiffs challenge, because that power is vested solely in the state legislature." Pittman filed an amended complaint naming the attorney general and the head and assistant head of the state Office of Child Support Services. All defendants moved to dismiss on Younger and Rooker-Feldman grounds; the district court denied the motions (rightly), then reached the merits and declared the law valid. No defendant raised "you sued the wrong person" as to the amended complaint. The court of appeals affirmed on the merits.

It seems to me the state defendants (and the district court) all misunderstood  why they are the wrong defendants and why the court should have dismissed the federal action . As far as I can tell from looking at New Jersey law, none of the executive officers is responsible for enforcing these laws. These laws govern family-court proceedings between private parties. Although the commissioner has rulemaking authority, the lawsuit did not challenge those regulations. The government, including these officials, plays no role in enforcing this law. The correct argument should have been that neither the governor nor AG is responsible for enforcing the challenged law, therefore the court could not enjoin them from doing so. Whether framed as standing, Eleventh Amendment, or merits, a federal court cannot enjoin an official from doing something he lacks the state-law power to do.

In other words, offensive litigation in federal court should not have been an option; this case required defensive litigation in state court. In resisting the continuation of the support obligation in the action against his ex, Pittman should have argued that the law allowing his child-support obligations to continue was constitutionally invalid, appealed that determination through the New Jersey courts and then to SCOTUS (if he lost--if he won, his ex-wife could have appealed). The challenge to the law should have proceeded like a challenge to a suspect state tort-reform provision--apply the provision in an actual tort case and adjudicate challenges to its validity.

Yet everyone missed this.

The governor and AG's argument as to the original complaint--"we cannot create or change the challenged law, that is the legislature's job"--is stupid. Taken seriously, the executive would never be a proper defendant in a constitutional challenge to a law because the legislature always controls the challenged laws. But the executive normally is the right defendant because constitutional litigation challenges the enforcement of the law, not the law itself--and the executive is  responsible for that. That is not true in this case because of the nature of the particular challenged law at issue. But not for the reasons the officials argued.  For the same reason, the three defendants in the amended complaint erred in not raising the same "wrong defendant" argument--we do not enforce this law.

So why did everyone mess up? At some level, I wonder if state officials prefer to litigate federal issues in federal court rather than state court. Why? The path to SCOTUS is one step shorter in federal court, but that does not seem a big deal. More importantly, I wonder if state officials buy the common idea that federal courts "do" federal law better than state court--they get federal law right--and that works as much for state governments seeking to argue their laws are valid as for rights-holders seeking to challenge their validity. State officials would rather defend an EpY action in federal court than litigate as interested parties in private state-court litigation, despite the purported "home-court advantage" in their courts.

Posted by Howard Wasserman on October 30, 2023 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 09, 2023

JOTWELL: Wasserman on Johnson on question selection

I have the new Courts Law essay, reviewing Benjamin Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022), an excellent history of how SCOTUS seized the power to grant cert and review discrete questions rather than entire cases.

Posted by Howard Wasserman on October 9, 2023 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, October 06, 2023

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 26, 2023

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Posted by Howard Wasserman on September 26, 2023 at 12:50 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, September 18, 2023

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.

Posted by Howard Wasserman on September 18, 2023 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Monday, September 11, 2023

JOTWELL: Malveaux on Williams on sex-plus

The news Courts Law essay comes from Suzette Malveaux (Colorado) reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming) on how courts deal with intersectional discrimination claims.

Posted by Howard Wasserman on September 11, 2023 at 02:40 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Saturday, September 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Posted by Howard Wasserman on September 9, 2023 at 07:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 02, 2023

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

Posted by Howard Wasserman on September 2, 2023 at 02:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 30, 2023

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

Posted by Howard Wasserman on August 30, 2023 at 12:23 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)